New Jersey-based pharmaceutical manufacturer Alvogen filed an emergency lawsuit Tuesday, stating in court filings it doesn't want its sedative midazolam used in "botched" executions.
Alvogen's objections were aired at a hearing that unfolded less than 11 hours before Dozier was to be put to death with a three-drug injection never before tried in the U.S.
Alvogen also claims the prison obtained its midazolam illegally, "despite a clear and unambiguous prior warning" from the company that they could not acquire it from company or a third party. But Dozier has waved appeals and said he wants to die so the combination of medicines to be used to kill him has not been examined in court.
"Using fentanyl in an execution is particularly odd and confusing because of its place in the opioid epidemic", said the legal director of the American Civil Liberties Union in Nevada, Amy Rose.
Todd Bice, an attorney representing Alvogen said the company's lawsuit was not about the constitutionality of the death penalty nor whether Dozier deserved the death penalty - it had exclusively to do with business.
Drug maker Alvogen alleges the state illegitimately obtained one of its execution drugs and says that the drug combination proposed is untested.
The judge ruled that based on that letter, Alvogen had a reasonable probability of winning its lawsuit, and she issued the temporary restraining order against the use of the drug. Gonzalez set another hearing for September 10.
Alvogen said in a statement that it was pleased with the ruling and will continue to work through the legal system to ensure its products are not used in executions. The pharmaceutical company also raised fears that the drug could lead to a botched execution, citing cases that apparently went awry elsewhere around the country. "But the company did not immediately ask to formally join Alvogen's lawsuit", The Associated Press reported. But the state refused.
The execution of 47-year-old Dozier is scheduled for Wednesday night.
Dozier, a twice-convicted killer who attempted suicide in the past, repeated his desire to die during a brief telephone interview Sunday with the Las Vegas Review-Journal.
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Alvogen said that Nevada law is clear that it is an offence to obtain a controlled drug "by misrepresentation, fraud, forgery, deception, subterfuge or alteration".
The order is the first time a drug company has successfully sued to halt an execution in the US involving one of its drugs. Clark County District Court spokeswoman Mary Ann Price said the company would also need to file with Judge Elizabeth Gonzalez a request for a court order to halt the proceeding.
"It has been at the centre of executions that have gone visibly wrong in every single state in which it has been used", said Maya Foa, the director of the ant-death penalty group Reprieve.
The health care supply company McKesson filed a similar lawsuit in Arkansas previous year, but that challenge was rejected.
Midazolam has been used as a replacement for Valium - diazepam - after Nevada's stocks of the sedative expired, a Nevada Department of Corrections (NDOC) release said.
But Dozier, who has been on death row at Ely State Prison since 2007, has said he wishes to die.
In court hearings and letters, he said there is a limit to how much artwork and exercise a person can do in prison.
The lawsuit names the director of Nevada's department of corrections, James Dzurenda, and the state's chief medical officer, Dr Ihsan Azzam, as conspiring to buy the midazolam along with an unidentified doctor who will participate in the execution. The victim's torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections.
In 2005, Dozier was sentenced to 22 years in prison for shooting to death another drug-trade associate, whose body was found in 2002 in a shallow grave outside Phoenix. A witness testified that Dozier used a sledgehammer to break Greene's limbs so the corpse would fit in a plastic tote that Dozier used to transport methamphetamine, equipment and chemicals.
He did, however, let federal public defenders review and challenge the execution protocol drawn up past year by state medical and prison officials.